dismissed EB-1A Case: Research

(b)(6)
DATE: SEP 0 5 2013 Office: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
~<2?---
-Y---­Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on April 27, 2012. The Administrative Appeals Office (AAO) dismissed the petitioner's 
appeal of that decision on February 27, 2013. The matter is now before the AAO on a motion to 
reopen and reconsider. The motion to reopen will be dismissed. The motion to reconsider will be 
dismissed. Ultimately, the previous decision of the AAO will be affirmed, and the petition will remain 
denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(1)(iii) requires that the 
motion must be "[a]ccompanied by a statement about whether or not the validity of the unfavorable 
decision has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and 
status or result of the proceeding. " Furthermore, the regulation at 8 C.F.R. § 103.5(a)(4) requires 
that " [a] motion that does not meet applicable requirements shall be dismissed." In this case, the 
petitioner failed to submit a statement regarding if the validity of the decision of the AAO has been 
or is subject of any judicial proceeding. As such, the motions must be dismissed pursuant to the 
regulation at 8 C.F.R. § 103.5(a)(4). 
Notwithstanding the above, the AAO's February 27, 2013 decision dismissing the petitioner's 
original appeal concluded that the petitioner failed to establish he meets at least three of the 
regulatory criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically and 
thoroughly discussed the petitioner 's evidence and determined that the petitioner failed to establish 
eligibility for the following criteria: 
• The awards criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(i); 
• The membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii); 
• The published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii); 
• The original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v); 
• The scholarly articles criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vi); 
• The artistic display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii); 
• The leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii); and 
• The commercial success criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(x). 
On motion, counsel contests the AAO's decision regarding the awards criterion and the original 
contributions of major significance criterion. Counsel does not contest the decision of the AAO 
regarding the membership criterion, the published material criterion, the scholarly articles criterion, 
the artistic display criterion, the leading or critical role criterion, or the commercial success criterion. 
The AAO, therefore, considers these issues to be abandoned and will not further discuss these 
criteria on appeal. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005). 
On motion, counsel first focuses on a previously approved immigrant petition under this same 
extraordinary ability classification. The petitioner filed this previous petition on October 13, 2004, 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
and USCIS approved it on February 27, 2006. The State Department subsequently terminated the 
petition under the authority of section 203(g) of the Act, which states: 
For purposes of carrying out the Secretary's responsibilities in the orderly 
administration of this section, the Secretary of State may make reasonable estimates 
of the anticipated numbers of visas to be issued during any quarter of any fiscal year 
within each of the categories under subsections (a), (b), and (c) and to rely upon such 
estimates in authorizing the issuance of visas. The Secretary of State shall terminate 
the registration of any alien who fails to apply for an immigrant visa within one year 
following notification to the alien of the availability of such visa, but the Secretary 
shall reinstate the registration of any such alien who establishes within 2 years 
following the date of notification of the availability of such visa that such failure to 
apply was due to circumstances beyond the alien's control. 
The record does not support counsel's implication that the AAO disregarded the prior approval. 
Rather, the AAO noted both that an approval based on the same evidence supporting the current 
Form 1-140 would be gross error and that a prior approval from several years past is not indicative of 
current eligibility as the statute requires sustained national or international acclaim as of the date of 
filing. 
Motion to Reopen 
A motion to reopen proceedings does not contest the correctness of (or simply request a reevaluation 
of) the prior decision on the previous factual record. Rather, a motion to reopen proceedings seeks 
to reopen proceedings so that new evidence can be presented and so that a new decision can be 
entered, normally after a further evidentiary hearing. Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 
1991). A motion to reopen must state the new facts to be provided and be supported by affidavits or 
other documentary evidence. 8 C.P.R. § 103.5(a)(2). Based on the plain meaning of "new," a new 
fact is found to be evidence that was not available and could not have been discovered or presented 
in the previous proceeding. 1 Motions to reopen should only be granted if the new evidence 
presented "could not by the exercise of due diligence have been discovered earlier." Matter of 
Coelho, 20 I&N Dec. 464, 472 n. 4 (BIA 1992) (citing Taylor v. Illinois, 484 U.S. 400, 414 n. 18; 
Guled v. Mukasey, 515 F.3d 872, 882 (8th Cir. 2008); Krougliak v. I.N.S., 289 F.3d 457, 460 (7th 
Cir. 2002). New evidence is considered to be material to the present case and not previously submitted. 
This "new" evidence is expected to convey new value or new meaning to the case. The reviewing 
authority will deny a motion to reopen that is not accompanied by previously unavailable and 
material evidence. Cf Matter of Coelho, 20 I&N Dec. at 472. 
1 The word "new" is defined as "1. Having existed or been made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> .... " Webster's New College Dictionary, (3d Ed. 2008). (Emphasis in 
original). 
(b)(6)
NON-PRECEDENT D£CISION 
Page 4 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314, 323, (1992) (citing INS v. Abudu, 485 U.S. 94, 108 (1988)). "There is a 
strong public interest in bringing litigation to a close as promptly as is consistent with the interest in 
giving the adversaries a fair opportunity to develop and present their respective cases." INS v. 
Abudu, 485 at 107. Based on its discretion, "the [US CIS] has some latitude in deciding when to 
reopen a case. [USCIS] should have the right to be restrictive. Granting such motions too freely 
will permit endless delay of deportation by aliens creative and fertile enough to continuously 
produce new and material facts sufficient to establish a prima facie case." !d. at 108. The result also 
needlessly wastes the time and efforts of the triers of fact who must attend to the filing requests. /d. 
A party seeking to reopen a proceeding bears a "heavy burden." !d. at 110. With the current 
motion, the petitioner has not met that burden. 
Regarding the motion to reopen, the petitioner failed to provide new facts that are supported by 
affidavits or other documentary evidence and that relate to the petitioner's eligibility as of the date of 
filing, May 10, 2011. Specifically, the petitioner's self-serving curriculum vitae and the reference 
letters were already part of the record of proceeding and, thus, are not new. The petitioner 's 
introduction in the 2011-2012 issue of published in 2013, postdates the filing of the petition 
and, thus, does not relate to his eligibility as of the date of filing. A petitioner must establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner 
becomes eligible under a new set of facts. See 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Consequently, the current submission fails to meet the 
requirements of a motion to reopen. 
Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
U.S. Citizenship and Immigration Services (USCIS) policy. 8 C.P.R. § 103.5(a)(3). The Board of 
Immigration Appeals (BIA) generally provides that a motion to reconsider asserts that at the time of 
the previous decision, an error was made. It questions the decision for alleged errors in appraising 
the facts and the law. The very nature of a motion to reconsider is that the original decision was 
defective in some regard. See Matter of 0-S-G-, 24 I&N Dec. 56 (BIA 2006). A motion to 
reconsider is based on the existing record and petitioners may not introduce new facts or new 
evidence relative to their arguments. 8 C.P.R. § 103.5(a)(3). 
Additionally, a motion to reconsider cannot be used to raise a legal argument that could have been 
raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). 
Rather, the "additional legal arguments" that may be raised in a motion to reconsider should flow 
from new law or a de novo legal determination reached in its decision that could not have been 
addressed by the party. Further, a motion to reconsider is not a process by which a party may 
submit, in essence, the same brief presented on appeal and seek reconsideration by generally alleging 
(b)(6) NON-PRECEDENT DECISION 
Page 5 
error in the prior decision. Matter of 0-S-G-, 24 I&N Dec. at 58. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in the 
initial decision or must show how a change in law materially affects the prior decision. !d. at 60. 
On motion counsel asserts the AAO incorrectly determined that the petitioner had abandoned the 
claims to the • and his receipt of government funding. The AAO 
decision acknowledged that the petitioner initially made these claims of eligibility , but noted that he 
failed to contest the director's decision or to raise these as issues on appeal. Consequently, the 
petitioner abandoned these claims within the appellate proceedings. The AAO supported this 
determination by citing to Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005) 
and Hristov v. Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011). 
Counsel asserts that cases the AAO references are not applicable as the cited cases were relevant 
more broadly, to forms of relief rather than being applicable to individual eligibility claims under the 
regulatory criteria. Hristov, however, did not involve forms of relief. Rather, it found that the 
petitioner in that case waived specific criteria under 8 C.F.R. § 205.5(h)(3) by failing to raise them 
on appeal. The court stated: "The law does not require the plaintiff to affirmatively waive claims; 
instead, he waives claims if he fails to assert them on appeal." !d. at *9. In light of Hristov 's direct 
relevance, counsel has not shown that the AAO committed an error in its application of the case law, 
only one of which was Sepulveda. 
Counsel also references the , claiming the AAO erred in 
determining that the record lacked independent documentation showing this fellowship was a 
nationally or internationally recognized prize or award for excellence in the petitioner's field. 
Counsel does not identify the evidence that he asserts the director considered but the AAO did not. 
As noted by counsel, the director did conclude that the grant and fellowship were local; however, the 
director did not reference any independent evidence in support of that conclusion. National and 
international recognition results, not from the individual or entity that signed the prize or the award, 
but through the awareness of the accolade in the eyes of the field nationally or internationally. This 
can occur through specific means; for example, through media coverage. A national or international 
level competition may issue lesser awards that merely receive local or regional recognition, which 
do not meet the plain language requirements of this criterion. Additionally, unsupported conclusory 
letters are not sufficient evidence that a particular prize or award is nationally or internationally 
recognized. As such, the petitioner 's claim that this fellowship constitutes a national award because 
the federal government of Australia issued the fellowship is not sufficient. The regulation requires 
the award to be nationally recognized rather than simply being issued by a national government 
authority. 
The portion of the motion relating to the original contributions of major significance criterion does 
not contain any discussion of new facts that are supported with affidavits or other documentary 
evidence and asserts error on the AAO's part. The AAO will therefore treat this portion of the 
motion as a motion to reconsider. However, the petitioner fails to support the motion to reconsider 
with any precedent decisions that demonstrate the AAO misapplied the law or USCIS policy. 
(b)(6)
NON-PRECEDENT DECISION 
Page 6 
Rather, counsel asserts that the AAO was "without basis" in citing Kazarian v. USCIS, 580 F.3d 
1030, 1036 (91h Cir. 2009) aff'd in part 596 F.3d 1115 (9th Cir. 2010) for the proposition that vague, 
solicited letters are insufficient by themselves to establish that any contributions are of major 
significance. Counsel asserts that, unlike the petitioner in Kazarian, the petitioner in this matter has 
submitted letters from internationally recognized experts. Counsel cites the Adjudicator 's Field 
Manual for the proposition that expert letters add value. The AAO's decision , however, did not 
summarily reject the letters, but carefully considered the content of those letters, determining that 
they were conclusory and unsupported by other evidence in the record. Although counsel's motion 
brief asserts that the AAO disregarded the petitioner's accomplishments listed in the expert letters, 
he failed to provide any examples of such overlooked accomplishments . Moreover, counsel states 
that these accomplishments, "by any objective criterion, would be regarded as being of 'major 
significance."' While counsel uses the word "objective," he is actually asking US CIS to make a 
subjective determination that an accomplishment is of major significance based on a description of 
the accomplishment. Counsel provides no legal authority to support the implication in his motion to 
reconsider that USCIS should subjectively regard accomplishments as being of major significance 
absent objective evidence of the impact of these accomplishments in the field. Thus, the filing fails 
to meet the requirements for a motion to reconsider. 
The motions will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen is dismissed. The motion to reconsider is dismissed. The decision 
of the AAO dated February 27, 2013, is affirmed, and the petition remains denied.